Public and Allied Workers Union of South Africa (PAWUSA) v Avontuur and Others (CA 8/2010) [2011] ZALAC 38 (27 September 2011)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA

(HELD AT CAPE TOWN)

Case No.: CA8/2010

PUBLIC AND ALLIED WORKERS’ UNION

OF SOUTH AFRICA ............................................................................................Appellant

and

EDWIN AVONTUUR ...............................................................................First Respondent

ZAINAP JOHANNES .........................................................................Second Respondent

VALENCIA NOKUTHELE BOOI ...........................................................Third Respondent

DOMINIQUE BARENDSE ...................................................................Fourth Respondent

STERA S SENTI .....................................................................................Fifth Respondent

SOLLY MASINGA .................................................................................Sixth Respondent

JUDGMENT

DAVIS JA:

Introduction

[1] This is an appeal against a judgment of Cheadle AJ, in which he dismissed an application for rescission of a default judgment handed down by the Labour Court on 6 August 2009.

[2] The dispute, which gave rise to this application, can be briefly summarized thus: The appellant retrenched certain of its employees in November 2008. These employees then referred a dispute to the Commission for Conciliation, Mediation and Arbitration (the ‘CCMA’). The dispute was not resolved at the CCMA and, accordingly, first respondent served a statement of claim on 11 March 2009. It was common cause that this statement of claim was legally defective for a number of reasons which are set out later in this judgment. On 6 May 2009 a second statement of claim was filed and served.

[3] Contrary to the first statement of claim, the second statement of claim did provide:

“If the party intends opposing the matter the response must be delivered within ten days of the service of the statement in terms of Rule 6(3) of the Rules, failing which the matter may be heard in the party’s absence and an order for costs may be made against that party”.

[4] Notwithstanding this warning, appellant did not file a notice of intention to defend or file a statement of defence. The matter was then placed on the unopposed roll of the Labour Court in the form of an application for default judgment. No notice of the application for default judgment was provided to the appellant and, accordingly, appellant was not present when the matter was heard by the court.

[5] Although the second statement of case, like the first, only cited the applicants both in its heading and body as “Avontuur and 13 Others”, Cele J enquired as to who from among the 14 applicants were present. Only 6 were present, he then proceeded to grant judgement in favour of the 6. The application of the remaining 8 was struck from the roll.

[6] The order was granted in favour of the six was made in the following terms:

“1. The Respondent, Public and Allied Workers Union of South Africa (PAWUSA), is ordered to compensate each of the Applicants listed herein, in an amount equivalent to 12 months of the salary and benefits each earned on the date of dismissal being:

Zainap Johannes – R6500.00 + R645.00 = R7145.00 x 12 = R86740.00

Nokuthele Booi – R7500.00 + R645.00 = R8145.00 x 12 =

R 97740.00

Dominique Barendse - R7500.00 + R645.00 = R8145.00 x 12 =

Edwin Avontuur - R7500.00 + R645.00 = R8145.00 x 12 =

Stera S. Senti – R20170.00 x 12 = R242 040.00

Solly Masinga – R16170.00 x 12 = R194 040.00

2. These payments to be made on or before the 21 August 2009. Interest becomes payable to any amount which remains outstanding after the date of 21 August 2009.

3. No costs order is made.”

[7] An application for rescission of this default judgment was then brought by appellant before Cheadle AJ. Two grounds were raised by appellant in support of this application. The first ground was that the judgment had been granted erroneously, particularly on the basis that the second statement of claim, relied upon by Cele J, was so defective that the order should not have been granted. One of the defects was that the statement of case did not include the names of the applicants. The second ground was that the order was granted erroneously in the absence of the appellant, particularly in that the appellant, who intended to defend the matter, had a bona fide defence, provided an explanation for its failure to be present at court and, absent its failure to be present, would have opposed the matter vigorously.

[8] Both of these submissions did not find favour with the court a quo. The first contention was rejected on the basis that Cele J had satisfied himself that the group of applicants contemplated in the citation which appears in the second statement of claim ‘Avontuur and 13 others’ included the six individual employers in respect of when the order was made. In dealing with the question of the absence from court of the appellant and the explanation provided, the court held that, a general secretary of a trade union who was experienced in labour litigation, would have understood the importance of a statement of claim, even one which was defective, would certainly have filed a notice of intention to oppose the referral and would not have taken the stance that there was no need to appear before the court. At the very least, appellant could have caused a letter to be written to the Registrar of the Labour Court, placing its opposition to the defective claim on record.

[9] In short, the court a quo was not satisfied with the explanation provided by appellant as to the reasons for its absence from court when default judgment was granted and dismissed its application for rescission of judgment.

The appeal

[10] An examination of this appeal must commence with an evaluation of the basis on which the application for default judgment was founded. In turn this requires an examination of the initiating document, being the statement of claim. The Labour Court has further been held previously that an applicant must set out in the statement of claim ‘a clear and concise statement of the material facts, in chronological order, on which the party relies, which statement must be sufficiently particular to enable any opposing party to reply to the documents.’ It has been held, correctly in my view, that ‘the rule is premised on the assumption that pleaders will dispose certain amount of skill and judgment. Of course, allowance will be made for the unsophisticated litigant’. Botha v Minister of Foreign Affairs and another (2000) 21 ILJ 2636 (LC) at para 6.

[11] Even if this degree of latitude is allowed to the present respondents in the drafting of their statement of claim, the first statement of claim was manifestly invalid. Not only did it not set out their case in a clear fashion but, in addition, it failed to identify all of the applicants by name, either on the front page or by way of a list which was annexed to the statement of claim. There was no notification regarding opposition by the defendants, as was contained, for example, in the second statement of claim, in short, the first statement of claim was clearly an incompetent document.

[12] In terms of section 191 (5) of the Labour Relation Act 66 of 1995 (the ‘LRA’), once a dispute has been referred to the CCMA and the relevant Commissioner has certified that the dispute remains unresolved or thirty days have expired since the Commissioner received the referral and the dispute remained unresolved, an employee may refer the dispute to the Labour Court for adjudication on the basis that it is alleged that the reason for dismissal was, inter alia, based on the employer’s operational requirements. See section 191(5)(b)(ii).

[13] While the first statement of claim fell within the prescribed time limits, it was common cause that, in the event that the first statement of claim was held to be an invalid document upon which respondents could launch their claim and thus have default judgment granted in their favour, the second statement of claim which had been lodged in 6 May 2009, was served out of time.

[14] On the record, there is no application for condonation for the late filing and serving of the second statement of the claim; hence even if this statement of claim is valid, there is no basis by which it could have been used to justify the relief sought by the respondents. It therefore follows that default judgment could not have been granted on the basis of a legally invalid document, namely the first statement of claim nor could it have been based on the second statement of claim, which was clearly filed in breach of the prescribed time limits.

[15] Given the finding to which I have come, there is no need to deal with other issues which were raised in the application before the court a quo. In summary, there was no legal basis by which judgment could have been granted in favour of the respondent as was done by Cele J. On the basis of this finding, the respondents will have to institute proceedings afresh, such proceedings being accompanied by a properly motivated application for condonation. In the context of this dispute and given the conduct of the parties, I do not consider that a costs order will be appropriate.

[16 In the result the following order is made:

1. The appeal is upheld.

2. The order of Cele J of 6 August 2009 is rescinded and set aside.

_____________

DAVIS JA

I Agree

_________________

WAGLAY DJP

______________________

MURPHY AJA

APPEARANCES:

For the Appellant : Adv. J Louw instructed by David Woolfrey Attorneys

For the Respondent : D Dykman of Dykman attorneys

Date of hearing : 30 August 2011

Date of judgement: 27 September 2011